What’s Wrong With Rights? Radha D’Souza in Conversation

Radha D’Souza is an organizer, academic and writer. After practicing law in India, she taught in New Zealand and currently teaches public law at the University of Westminster in the United Kingdom. She also worked as an activist lawyer for the labour and social justice movements in the Asia-Pacific region. In March, D’Souza was in Montreal as a Visiting Scholar at McGill University where she gave numerous talks about her recently published book, What’s Wrong With Rights: Social Movements, Law and Liberal Imaginations.

Grounded in historical context, her book explores how "rights" emerged alongside the development of capitalism, and what "rights" actually do in the world. It interogates, among other themes, the connections between property rights, human rights, and liberalism; the ways in which the "right to free and fair elections" serves as a means to reorganize politics in the Third World; the differences between today’s democratic movements and older anti-colonial movements; and whether social movements' engagement with the rights discourse truly enables them to fight for freedom and emancipation. Given how embedded and ubiquitous the rights discourse has become in the mainstream NGO landscape, as well among activists and indigenous people, this book is a much needed critique of the narratives we often take for granted, and of liberalism itself. I sat down with D’Souza in June at the end of her stay in Montreal to talk about these themes in her book.

ZM: Your book What’s Wrong with Rights presents a critique of rights and human rights. How did you begin this journey of looking at rights from a critical perspective?

RD: I have been a social justice campaigner for most of my life. I interact with social movements, critical scholars and activist lawyers. One of the issues that kept coming back is about how to articulate our claims. Invariably, social movements articulated their claims in their language of rights, and it got to a point where they were not able to imagine any other way of articulating their claims. Also, I have also practiced as a constitutional lawyer in India where I took up cases for social movements, NGOs, and social justice causes including human rights. I then came to academia and I realized that there was a disjuncture in the way lawyers, social justice movements and academics understand rights. They made very different kinds of assumptions that were confusing the whole discourse about social justice. I felt it necessary to unpack those assumptions. My book addresses all those people struggling for social change. I want to understand how they imagine rights, how they understand them and what they expect from the concept.

ZM: Where do we begin when we trace the history of rights? You talk in your book about how rights developed alongside capitalism and you trace the different phases of capitalism – mercantile capitalism, industrial capitalism and today’s transnational finance capitalism. Can you explain where in history rights emerged as a concept and how it became so widespread?

RD: The word "right" does not exist in many indigenous languages or in many African or Asian cultures; it is something quintessentially European. You can trace rights back to Greek or Roman times and in that tradition. However, there is a rupture in the concept of rights. In Ancient Europe, "right" was used as an ethical concept in philosophy and ethics – about the right way to be as opposed to the wrong way of being in the world. With the rise of capitalism and modernity, rights became a conceptual tool for re-organizing society from a feudal order and creating a new social order based on commodity production. Feudal societies were land based, with an entire social order centred around land and land relations, whereas in a commodity producing society, you have a world that is structured around commodity production, capital investment returns and circulation of commodities. For them to circulate, they can’t be fixed to anything. Land is a fixed thing, you can’t move it around. In feudal societies, land was not a commodity, it was not a saleable item, and nor was labour. So one of the first changes we find coming is when labour and land become separate.

With commodity production, you have land becoming a commodity so land becomes a saleable item and labour becomes another commodity and you have labour markets. People then have to be evicted from land – that’s how you can buy and sell land without any hindrance. How do we do this, how do you claim this plot of land as mine? That is where we find rights emerging as a concept, where every person becomes individually entitled to this or that thing. That is the transformative moment. The point of this history is that rights are absolutely intrinsic to capitalist production because rights create two parties: one which has something to give, to sell, and another which needs that item. The contract between the buyer and the seller is the foundation of commodity transactions. And that commodity transaction is the foundation of capitalist society. So if you want to summarize the whole system in a nutshell: for capitalism to be capitalism, there must be commodity production. For commodities to be produced there must be a buyer and a seller, and for a buyer and a seller, you must have two parties, one with the right to sell something and the other with the right to buy something.

ZM: And I guess that’s what you mean by property rights and human rights as being two sides of the same coin – as you say in your book, they constitute a “comprehensive regime of rights.”

RD: Yes, and they are two sides of the same coin because when early enlightenment European thinkers developed their theoretical justification for rights, it was prompted by the need to justify private property and alienable property. John Locke for example asks, "How can we say this land is mine? If you have put your labour into it, you have added value to it, therefore it becomes your land." Conversely, what about those who are landless or those who are evicted from land? Well his answer would be that they were not good enough. They did not manage to keep their land and to labour on it sufficiently to be able to claim it as a right, or they could buy it back if they are clever enough to earn enough money and purchase it. The nexus between property rights and labour was always there in classical thinking on rights. It’s only since the end of World War II that the relation between property rights and labour rights is broken. What I argue is that we need to bring that back and make that connection between what is called human rights and property rights.

ZM: You talk about the difference between material rights like the right to land, water and so on, and intangible rights like the right to happiness, the right to security, the right to freedom of thought. You make the argument that rights are complicit in constructing market relationships for both tangible and intangible things. What kind of market relationships exist for intangible things?

RD: I think there are two parts to this question: one is that the nature of property itself has changed. Earlier when we talked about property, we meant tangible property – it was land, goods, tables, chairs, whatever. That is what people understood by commodities. Now you have a whole raft of new properties which are intangible, for example derivatives. There is no such thing as derivatives, it is a completely legal fiction. Or hedge funds. Or insurance which is property and it’s very much part of property rights. Or trade in debt. Property itself has become intangible – that’s one part of it.

The other part is commodification. Commodification processes make more and more social relations become things. For example, women give birth to children because they are biologically capable of giving birth. Now you have science that says you can actually, to put it crudely, rent your womb to someone who wants a child and it’s commodity production. Something as intimate and personal as your womb can become a subject of contract. Now you have law firms that specialize in surrogacy, model contracts on surrogacy, litigation. Teacher-student relationships were considered a very privileged, responsible, socially important relationship. Now universities regularly say that students are our consumers, they have a right to education, and we are service providers. There is an education market and a whole legal framework around education. So right to education includes the providers and the consumers. It becomes the education market where knowledge becomes property. As every aspect of life becomes commodified, you have rights coming in because without rights, there can’t be commodification.

ZM: Where did human rights come into this relationship and into the rights discourse?

RD: Many people do not realize that the prefix "human" to rights is a relatively new thing. Before World War I, when people in the 18 and 19th centuries talked about rights, they just talked about rights as including property rights and human rights or the social side of rights. But after World War II, with the UN charter we find two big changes. One is that rights become internationalized - previously, it was the nation state that was responsible for rights. Then we have the prefix "human" becoming attached to the word right. This was not there before and it’s important to remember that. By the time we come to 1945, the concept of private property, commodified relations, commodity production, industrialism, is very firmly established. It becomes given, something natural, so much so that we can’t imagine a world without private property. Because they are natural and given, somehow all we need to do is focus on human rights, as if human rights have nothing to do with economic rights. I think that is one of the main problems because social, cultural and other rights don’t exist in a vacuum. To have a culture, you need to have to have some economic basis for it. People need to put food on their table, send their children to school, and without that economic basis, there is no culture, no individual human rights. It is one of the paradoxes of our times. When the UN was established, there were some thirty odd rights, twenty-eight I think. Now there are about 300 rights. Do people have more rights than in 1945? I mean, it’s open to question. For example, a subsistence farmer may not be rich, but could do something to feed his family. Now you have a system where all that land is taken away, farmers are not allowed to build their huts anymore because there are municipal laws and are all kinds of property regimes and they have to buy food, and there is more starvation because what they could do with their own labour they are no longer able to do. So what is the solution? We say right to food. But right to food does not take away the need to find the money to buy food. In India some years ago, we had this extraordinary situation where there were warehouses where wheat were rotting and people were dying of starvation. It’s not because there is no wheat, it’s because there was no money and the right to food does not address that question.

ZM: Wouldn’t you say however, that the right to food, or to water, or to good housing does give a certain leverage to social movements. For example, the farmer could say, I don’t have food, but I have the right to food, therefore I should have it. It becomes a strategic tool to leverage as social movements very often do.

RD: Don’t forget that the farmer is not the only person claiming rights. The farmer is saying I have right to water, to food but so is Monsanto. It’s a fundamental feature of our legal and social system that a corporation is a person like a natural person. In law, both of them are entitled to human rights. Now, how much water does a farmer consume and how much does he claim? He only claims water for his family or for his farm. But Monsanto’s farm is in comparison to the farmer’s is enormous. When they buy land, they buy the water, the forests, everything. I think it’s this inability to see how corporate persons and natural persons work that gets us into all this kind of tangle. I think it’s an extraordinary move to make property owners collectively equal to a natural person. Now you can say in theory all subsistence farmers can come together and form a corporation. Like with indigenous people, an idea that is often sold to them is to come together and form a trust and do business. But when they start doing that, they become like any other corporation because they have to get into market and commodities and corporations and there is nothing indigenous about an indigenous company other than the faces of people that run it.

ZM: You are very critical of liberalism and in the book you look at the relation between human rights and liberalism. You argue that liberalism is first and foremost an ideology of capitalism and you mention the "extraordinary power of promise that ideological liberalism has over our imagination" within this regime of transnational monopoly finance capital that "promises everything to everyone." Can you explain how you define liberalism in the book and what you mean by this idea of its power of promise?

RD: Liberalism is a way of seeing and being in the world which comes with a certain philosophical understanding of who we are as human beings. Liberalism is the ideology of capitalism. What is that ideology? To understand that, we must ask who are the people who wanted this system of commodity production and whose world view is represented in the European enlightenment. The merchants were the driving force. They wanted to get rid of the old feudal order and establish a commodity producing order. In a merchants world, everything is about buying and selling, because that’s what they do. What liberalism does is project a merchant’s world view and understanding of the world as the human world view, and as something that is universal to all humanity. Anything that has a transactional or exchange value becomes something with value. When we start extending that to everything – to land, to forest, to all sorts of things in life, then it becomes problematic. One of the feminist critiques for example was about house work and house labour. In the capitalist world view, a woman’s housework, raising children, cooking, cleaning, had no value because it was not being sold in the market and she was not bringing a wage for that. But that same work of childcare, when it done by a child care provider, it has value because we are paying for it and someone is buying it. So you can see that in every aspect of life, this merchant’s world view becomes the way of being in the world. And there is the conception that every human being is motivated by self interest. Why do I go to work? Because I want to earn money. Everything we do, the explanation for it is we get something in return for it. A world where we do things without return is unthinkable in a merchant’s world view and that is the core of liberalism.

ZM: So when you talk about liberalism’s power of promise, what do you mean?

RD: If you look at the legal structure of contracts, it doesn’t have any substance to it. It doesn’t say you have to buy or sell this product. There is a structure to it, and that structure is a buyer and a seller has something. What that thing is doesn’t matter. Similarly, if you see that rights is the conceptual tool on which contracts are based, rights themselves don’t have substance. Rights can be to anything. So it’s like an empty shell: you can put anything in the shell and take out anything. Rights always hold the promise of the possibility of something.

ZM: Can you give an example?

RD: Let’s take right to work. What does that mean? I don’t have a job. All it means is if I can apply for a job and I am qualified for the position, I should be considered for the job. It’s nothing more than that, but as long as there is this right to employment, right to work, I will continue to live in the faith and the hope that I will get a job by applying. There are many unemployed people who keep on applying hundreds of times and don’t go anywhere with it, but still have the hope that the next application will be successful. Or the right to shelter. It’s a very legally accepted kind of right, but right to shelter does not mean that if I don’t have a home and I am on the streets sleeping rough, someone is going to come and give me a flat. All it means is that if I have the means then I can have a house or a flat. However, when we say right to house it holds out the promise of a possibility and because a possibility is something that we want to keep because it’s a kind of hope or whatever, many people support rights.

But I think there is another side to this possibility and that is that because there are two sides to rights, the property owners and the social rights, different claimants ask people to give up their existing rights to something with the promise of something better tomorrow. So Monsanto will go to a subsistence farmer and say "give up your land and if you do that with that money you can invest and do something and become a rich man." And it gets people into thing, "If I give up what I have today, I will be better tomorrow." And if you bear in mind that there are different people claiming the same rights – the subsistence farmer alongside Monsanto to land – you can see who comes out winners in this and who doesn’t.

ZM: In that case, isn’t the problem that rights establish equality between all those who claim them, rather than having a hierarchy where a farmer’s rights come before the rights of a corporation. Is the problem that there is not a hierarchy of rights?

RD: No, I don’t think it’s a hierarchy issue at all. Rights establish equality, remember, that’s the core of rights. That would be a very anti-capitalist, feudal system where there were hierarchies and obligations, and status based relationships. Rights promise equality, so as a subsistence farmer, I am equal to Monsanto. I can potentially become another Monsanto and in theory there is nothing stopping me becoming one. It’s the promise that every homeless person can become a land tycoon – there is nothing to stop them. And that is why the most interesting thing about rights and the way the ideology of rights is reinforced is the rags to riches story that reinforces this idea that we are all equal. For every rags for riches story, you have ninety-nine who have gone worse or who have definitely not become wealthy or famous or rich.

ZM: Let’s go to the theme of the right to free and fair elections which is the focus of one of the chapters of your book. You argue that international election monitoring has become very commonplace and accepted in much of the global South where elections are monitored primarily by outside observers. In your view, the right to free and fair elections is a "vehicle for reorganizing politics in the third world." You look at how this began in 1986 in the Philippines, and then in Nicaragua in the 1990s. Can you talk about how the right to free and fair elections came about historically, how it become institutionalized, and why should we be critical of this ‘right’ and of international election monitoring.

RD: Let’s go back in time a little. We talked about the rise of commodity production and capitalist societies, and how rights came out of the European Enlightenment which was basically anti-feudal and anti-theology. If you look at pre-capitalist societies, the source of law was God and the church was the mediator, so it came from a transcendental source. With God gone and states becoming secular, kings are no longer divinely appointed. There is need for a different kind of theory to justify the social order. Enlightenment thinkers came up with democracy as one of those orders. The idea of democracy is based on a social contract, so it’s the same contract imaginary or analogy that defines the entire social order; contract is no longer between merchants doing trade between themselves, but social contact organizes all of society. The structure of contract is a reciprocal relationship. People should give up their rights to self-defence, to self-organize, to self regulate, to the state and in return, the state will provide them with protection. So there has to be authorization by people for the state to have the authority to govern. How do you give authorization? Through Democracy. Periodically, you have elections and in theory, people authorize the state to rule and govern them.

Now you have international election monitoring which comes after the anti-colonial movements and independence of the colonies. There was a loss of a control over the colonies. International organizations, the G7 states, and organizations like the National Endowment for Democracy (NED) made a concerted push for election monitoring in the name of democracy promotion. So democracy promotion becomes US foreign policy in the late 1970s and 80s. What does democracy promotion mean? It means that there are certain international, so-called mature democracies, which are invariably, the G7 countries, the former colonizing countries who supervise elections, who fund elections, who tell them how to write the electrical rules and who then certify the elections that are right, democratic, and so on. Now my question is, where is the social contract here? Where is the democratic theory, if we accept the theory as it is in its most ideal form, there is not even a notional sense of citizens of third world states authorizing their states to govern, because on top of that citizen-state relationship, you have an international election monitoring law and systems, and now we even have an election monitoring industry which provides various kinds of "electoral services" to states. And by the way, this is a slight digression, Cambridge Analytica emerged as one of those companies that provided election services to third world states. Much before they got involved in Trump election, they were involved in elections in Kenya and in India.

So I question this entire idea of election monitoring and the right to free and fair elections. What is it? It didn’t exist before. It’s a new right that has come in the 80s. In the classical period of liberalism, elections and democracy were a political thing: citizens organized politically to give their authority. Now it’s no longer a political issue, it’s a legal issue, established by international legal regimes that say to have free and fair elections, you should have x y z, and you should have all those tick boxes. So where is my right as a citizen in all this?

ZM: When I think of the Kenyan election last year, I am sceptical of the idea of a contract between a states and its citizens, or authorization by citizens to decide who is going to govern them. That relationship is quite damaged if not absent in a large part of the global South. In Kenya, with or without election monitors, one might argue that citizens often do not have the political power to choose their own governments. Citizens sometimes want election monitors because they do not trust that their own political processes will lead to changes within the government. What is your response to that?

RD: The question of what people should be doing presupposes they understand the nature of the world they live in. For most people, because of proximity to their own government, they are able to see the problems and the flaws. What they don’t see is the international linkages and the context within which their own governments operate. This is the big difference between anti-colonial movements and the so-called democratic movements today. In the anti-colonial movements, it was very clear who they are fighting against. And that’s why so many people and so many countries rallied across races, tribes, religions in the anti-colonial movements. It was a great moment because it unified a wide range of people and identified the real source of exploitation. One of the problems we have now is this whole idea of self-contained territorial units we call nation states. Isolating the problems within the nation state without understanding the international context for that nation state is a very big problem and that’s one of the issues I raise in my book – we need to locate the nation state within the larger context of imperialism, of transnational monopoly finance capitalism and understand how each one of our countries sits in that. This exactly what the G7 says: "you’ve got your independence, now it’s all your problem." But they want their investments there, they want to acquire land there, they want to dictate how the states are run. And then they want to find people who are allies or who will listen to what is said. My argument is if we realize this connection then we can begin to re-think politics in a way where we really understand the wider forces. If these powers were not there, I think people will manage their governments rather well. Take Saddam Hussein for example. Do you think the Iraqi people did not know that he was a tyrant and an oppressor? Everybody knew that. But why couldn’t they get rid of him? Because he was backed to the hilt by western powers to fight Iran. And when that job was done and the Cold War was done and there was no more use for him, and of course he tried to be smart and he thought he was going to do all his oil trading in Euros and that’s when they knocked him out.

ZM: Can you talk about the role of big international NGOs like Human Rights Watch and Amnesty International and how these organizations fit into the rights regime that you critique – do they do any good in terms of monitoring human rights violations in the global South?

RD: I think that is an important question because people have a lot of faith in these institutions. One of the things we don’t often talk about is the connection these organizations have to their own states, for example, HRW joining the Democratic Party. It starts to make sense if we go back to what I said earlier about how democracy promotion becomes an important cornerstone of American foreign policy and later G7 foreign policy. After the Watergate scandal, there was the idea that we can’t leave everything to the state to do because Western governments became very discredited by what Watergate brought out. And so there was an effort to distance democracy promotion from direct state involvement. We see the establishment of the National Endowment for Democracy (NED) which is supposed to be an NGO, but is not because it is funded by the US Congress and the main participants or components of NED are the Democratic Party, the Republican Party, the Chambers of Industries and Commerce and the Trade Union Federation. So it’s not an independent or autonomous body. This funding then is distributed through a wide range of NGOs and people who then begin to follow this whole democracy promotion policy and act as a tool of foreign policy for these governments. There is another side to it also. When it comes to breach of human rights by the G7 states, Guantanamo is a very good example, Abu Ghraib is another, or renditions: what is Amnesty doing? They are not mobilizing mass public opinion against that. You find them becoming subservient to the state. And who is funding them? They get money from all kinds of private sources. And where is the autonomy if there is a revolving door between the state and these kinds of institutions? So there are a lot of credibility issues around that. And there are inconsistencies in the way they have taken up issues. In the Balkan situation they went out of their way to raise questions about the war, but on the Tamil question when there was effectively a genocide, human rights organizations pulled out and vacated the space for the army to move in. Even the founding of some of these organizations: Amnesty was founded by two people who were intelligence officers in the Vietnam war and they came home and decided that they were gong to promote democracy around the world. I think we need to look more carefully at what they do and who is behind them.

ZM: At the end of your book, you look at what rights mean for social movements and you are quite critical of how social movements have engaged with rights. You write that social movements believe that by "re-prioritizing rights they can reconcile imperialism and social justice." Is the problem of social movements engaging with the rights discourse a conceptual problem or is it a problem of vocabulary? Do social movements need to change the way they talk about social justice, and right to water, land and so on or is a way of thinking that needs to change?

RD: I think it’s a whole way of thinking because it’s partly conceptual, it’s partly vocabulary, it is partly not knowing how property right and social rights are related, it’s partly not knowing about how rights establish institutions and it’s partly about not knowing what we want and how to get it really. If people don’t have food and we want food, how do we get food and is this the vehicle? We are in the situation we are in because we have forgotten some of the histories of our struggles. That’s an important reason why we are not able to imagine a way of articulating our demands, a way of reconceptualising struggles and strategies. We have really forgotten that history and we are left with this idea that the only thing left is rights. For example. Let’s take the example of debt. States like Russia have gone into debt before. Western countries wanted Russia to pay back debts. What did the Russian Revolution do? It repudiated debts. And they invented the term ‘odious debts” i.e debts incurred for reasons that do not benefit people. The tzar was not borrowing it for the people. Same thing with the Chinese Revolution, they repudiated their debts, so did Costa Rica, so did Jamaica. This is a very rich history but it never comes up during the debt crisis because all we are left thinking about is, ‘we have to ask for rights to re-schedule it’ and when you talk about repudiation, people say "you can’t do that." But countries have done it and fared well – Russia came bouncing back, China was destitute, it came bouncing back. All countries that have repudiated debt have done rather well. Why have we lost the courage? I think we are kind of trapped in this whole discourse of rights as the only way to imagine freedom, so much so that we are not able to imagine what real freedom will look like. And that’s the big difference between anti-colonial movements and our times now. We don’t see the colonizers of our times, although we can see that the US wages war, there are rendition flights, we are not able to put those things together and see imperialism or colonialism as the main problem. Instead there is this idea that we can change something with our leaders or within our nation states and that becomes freedom. Rights become a substitution for freedom, and I imagine most of the time when people say they want the right to this or that, what they are asking for is freedom or emancipation. So why don’t we just say we need freedom. One of the reasons we are not able to re-imagine this is because we have forgotten our histories.

Zahra Moloo is a Kenyan journalist, researcher, and documentary filmmaker. Her work focuses on the extractive industries, biodiversity, land rights, and the links between economic and environmental issues. She has published in Al Jazeera, BBC Focus on Africa magazine, IPS News, CBC, Jacobin and Africa is a Country. She is currently working on a feature documentary about conservation in East and Central Africa. Learn more about her work at www.zahra-moloo.com.

Subscribe to our weekly newsletter

The Mediterranean Sea has become a harrowing gauntlet for hundreds of thousands of refugees and migrants each year. Through the intimacy and immediacy of fiction, poetry, photography and reportage, MEDITERRANEAN explores these turbulent journeys. Featuring Edwidge Danticat, Boris Boubacar Diop, Maaza Mengiste, Chika Unigwe, Hassan Ghedi Santur, Mario Badagliacca, Jehan Bseiso and many other talented writers and artists

An affecting, clear-eyed and brutally honest account of the refugee crisis. -Nadifa Mohamed, author of Black Mamba Boy and The Orchard of Lost Souls.

Warscapes is an open-access digital initiative which seeks to fill a void in mainstream media. We offer deep and incisive perspectives on contemporary conflicts by featuring under-represented voices and issues that are grounded in literature, history, poetry and activism.